Citation Nr: 0218245
Decision Date: 12/17/02 Archive Date: 12/24/02
DOCKET NO. 00-12 190A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUES
Entitlement to an increased evaluation for burn scar of
the left ankle, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Carole R. Kammel, Counsel
INTRODUCTION
The veteran served on active duty from December 1941 to
September 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1999 rating decision of the
Department of Veterans Affairs (VA) Medical and Regional
Office (M&RO) in Wichita, Kansas.
In February 2002, the Board remanded this issue on appeal
for additional development. Thereafter, a VA examination
of the veteran was completed in April 2002. The case has
been returned to the Board, and is ready for final
appellate review.
FINDINGS OF FACT
1. The M&RO has notified the veteran of the evidence
needed to substantiate his claim, and has obtained and
fully developed all evidence necessary for the equitable
disposition of the claim.
2. The rating criteria for evaluating scars, in effect
prior to and from August 30, 2002 are equally favorable to
the veteran in evaluating his claim.
3. The service-connected second-degree burn scar on the
lateral aspect of the left ankle is approximately sixteen
square inches in size, is asymptomatic, and is not
productive of any functional impairment.
4. The service-connected burn scar of the left ankle scar
is not shown by competent evidence to have resulted in
marked interference with employment or to have required
frequent periods of hospitalization nor are extraneous
factors or circumstances present, or factors related to
employment linked to the service-connected scar of the
left ankle shown, that could be considered exceptional or
unusual.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for a
burn scar of the left ankle have not been met. 38
U.S.C.A. §§ 1155, 5103A, 5107 (West 1991 & Supp. 2002); 38
C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.118,
Diagnostic Codes 7800-7805 (effective prior to August 30,
2002); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.41, 4.45,
4.59, 4.118, Diagnostic Codes 7800-7805 (effective August
30, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act
As a preliminary matter, the Board finds that all relevant
facts have been properly and sufficiently developed and
that no further assistance to the appellant is required in
order to comply with the duty to assist as mandated by the
Veterans Claims Assistance Act. See 38 U.S.C.A. §§ 5103,
5103A (West Supp. 2002); 66 Fed. Reg. 45,630-32 (Aug. 29,
2001) (codified as amended at 38 C.F.R. § 3.159). This
law sets forth requirements for assisting a claimant in
developing the facts pertinent to his claim.
VA issued regulations to implement the VCAA in August
2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a)). The amendments were effective November 9,
2000, except for the amendment to 38 C.F.R. § 3.156(a)
which were effective August 29, 2001. Except for the
amendment to 38 C.F.R. § 3.156(a), the second sentence of
38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA
stated that "the provisions of this rule merely implement
the VCAA and do not provide any rights other than those
provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly,
in general where the record demonstrates that the
statutory mandates have been satisfied, the regulatory
provisions likewise are satisfied.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and
any medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of
which portion, if any, of the evidence is to be provided
by the claimant and which part, if any, VA will attempt to
obtain on behalf of the claimant.
The record discloses that in a March 2000 Statement of the
Case and in a letter from the Board to the veteran, dated
October 2, 2002, he was provided the criteria for rating
the service connected burn scar of the left ankle both
prior to and effective from August 30, 2002, respectively.
In the October 2002 letter, the Board requested that the
veteran identify any outstanding evidence that would
substantiate his claim, and he was provided with copies of
the appropriate release forms that he needed to return.
The Board noted that VA would make reasonable efforts to
obtain relevant evidence; however, he was responsible for
submitting the evidence. The veteran did not respond to
the Board's letter. Finally, the M&RO informed the
veteran of the notice requirements of the VCAA in a letter
to the veteran, dated in May 2001. As such, the Board
finds that the VA satisfied the duty to notify the
appellant of the information and evidence necessary to
substantiate his claim, and identified the evidence that
VA was to acquire on his behalf as required by
Quartuccio v. Principi, 16 Vet. App. 183 (2002). These
correspondences were sent to the veteran's latest address
of record, and copies were mailed to the veteran's
accredited representative, the Disabled American Veterans.
Duty to assist
In general, the VCAA provides that VA shall make
reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate a claim for VA
benefits, unless no reasonable possibility exists that
such assistance would aid in substantiating the claim.
The law provides that the assistance provided by VA shall
include providing a medical examination or obtaining a
medical opinion when such an examination or opinion is
necessary to make a decision on the claim. An examination
is deemed "necessary" if the record does not contain
sufficient medical evidence for VA to make a decision on
the claim. In this regard, in February 2002, additional
development was undertaken by the Board with respect to
the veteran's claim for an increased evaluation for burn
scars of the left ankle, to include an additional VA
examination. The examination was completed in April 2002.
As noted in the preceding paragraphs, the Board finds that
reasonable efforts have been made to assist the appellant
in obtaining evidence necessary to substantiate his claim,
and that there is no reasonable possibility that further
assistance would aid in substantiating it. All of the
veteran's pertinent VA outpatient and private treatment
records have been associated with the claims file
concerning the issue on appeal. The appellant has not
identified any evidence which has a bearing on this case
that has not been obtained with respect to the issue on
appeal.
Accordingly, the Board concludes that VA has satisfied its
obligation to notify and assist the veteran in this case.
Further development and further expending of VA's
resources is not warranted. Taking these factors into
consideration, there is no prejudice to the veteran in
proceeding to consider the claim on the merits. See
Bernard v. Brown, 4 Vet. App. 384, 393-394 (1993).
Factual Background
Service medical records reflect that in August 1943, the
veteran sustained a second degree burn after his foot
slipped into hot dishwater while on kitchen patrol. The
burn was described as a second-degree burn which measured
six by eight inches on the antero-lateral aspect of the
left foot. He subsequently underwent skin grafting. A
September 1945 examination for discharge report reflects
that the veteran had been hospitalized from August 23, to
November 1, 1943 for a third degree burn of the left foot.
An examination of the skin revealed a three inch stellate
burn scar on the lateral aspect of the left ankle which
was not adherent but poor in quality.
In a rating decision, dated in September 1945, the M&RO
granted service connection for a third degree stellate
burn scar on the lateral aspect of the left ankle and
assigned a 10 percent evaluation.
In September 1990, the veteran filed VA Form 21-4138,
Statement in Support of Claim, and requested an increased
evaluation for his service-connected burn scar of the left
ankle.
An October 1990 VA examination report of the veteran
reflects that the veteran had a twelve by eleven
centimeter scar on the lateral aspect of the left ankle.
There was tenderness with internal rotation of the left
ankle. The scar was noted to have been dry, thin and
hyperpigmented. There was tenderness over the lateral
malleolus. The veteran had full dorsiflexion and
extension. Photos of the left ankle were taken during the
examination. A diagnosis of a scar over the left lateral
malleolus second degree burn was entered by the examining
physician.
VA outpatient and examination reports, dating from
December 1997 to January 1999, reflect that the veteran
complained of swelling of the left ankle in December 1997.
A May 1999 VA scar examination report reflects that the
veteran had sustained a burn to his left foot and ankle by
hot liquid during service in 1942 and that he was treated
for first, second and third degree burns of the area.
Upon examination of the lateral aspect of the left foot
and ankle, the area was nontender and had a normal
texture. There was no evidence of inflammation, eczema,
keloid formation, adherence, ulceration, tissue loss, or
breakdown of the skin. There was one area of a third
degree burn which was paler than the other area and there
were first and second degree burn areas which were darker
than the surrounding area. There was no evidence of
disfigurement. A diagnosis of status-post first, second
and third degree burns of the left foot and ankle were
recorded by the examiner.
A May 1999 VA orthopedic examination report reflects there
was no evidence of any pain, weakness, stiffness,
swelling, heat and redness, instability or giving way,
"locking," fatigability, or lack of endurance of the left
ankle. There were also no periods of flare-ups. It was
noted that the veteran had first, second and third degree
burns of the left ankle. The veteran had dorsiflexion of
the ankles to 20 degrees, bilaterally, and plantar flexion
to 45 degrees, bilaterally. There was no tenderness to
palpation about both ankle joints. Range of motion of the
ankles was noted not to have been limited by pain,
fatigue, weakness, or lack of endurance following
repetitive use or during flare-ups. The veteran walked
with a left limp. A diagnosis of a normal examination of
the ankles was recorded by the examiner.
A February 2000 report, submitted by Robert L. Ricci,
M.D., reflects that upon examination of the veteran's
left ankle, there was scarring over the lateral aspect.
There was also some discomfort on range of motion of the
left ankle. However, there was no evidence of any
effusion. The arterial circulation in the left ankle was
noted to have been intact and there was no evidence of any
arterial insufficiency. An X-ray of the left ankle
revealed mild degenerative changes. There was no evidence
of any osteomyelitis.
VA orthopedic and scar examination reports, dated in April
2002, reflect that the same examiner had performed both
examinations. The examiner noted that he had reviewed the
veteran's claims file prior to the examination. A history
with respect to the veteran's burn scar of the left ankle
was recorded by the examiner and is consistent with that
previously reported in this decision. During the
orthopedic examination, the examiner indicated that a
review of the record reflects that over the previous six
years, there were no complaints of left ankle problems.
The veteran denied having any pain, weakness, stiffness,
swelling, heat, redness, or instability of the left ankle.
The veteran denied any tenderness on palpation of the
ankle. The veteran was not taking any medications of his
left ankle and there were no flare-ups, assistive devices
or previous surgery associated with the left ankle. An
examination of the left ankle revealed that the veteran
had a normal gait. The veteran denied having any pain on
motion of the left ankle, and there were no additional
limitations noted on ambulation with no pain, edema,
effusion, instability, weakness, tenderness, redness,
heat, or guarding of movements. Range of motion of the
left ankle revealed dorsiflexion to 20 degrees and 45
degrees of plantar flexion. X-rays of the ankles showed
no joint or bony changes. At the end of the examination,
the examiner concluded that at that time, there was
insufficient clinical evidence to support any chronic
pathological disorder. The examiner noted that the burn
was a second-degree burn, which was more superficial and
which did not involve the joint at the time of injury.
The examiner related that there were would be no suspected
residuals in the ankle due to the previous burn.
A review of the April 2002 VA scar examination report
reflects that photographs of the veteran's left ankle,
conducted in October 1990 and May 1999, have been
associated with the claims file and do not reflect any
apparent changes. The examiner noted that the veteran had
a history of chronic venous insufficiency or peripheral
vascular disease, bilaterally. It was noted that over the
previous year, the veteran had not reported any recurrent
swelling or edema of the left ankle. The examiner was
unable to elicit any specific complaints with respect to
the veteran's ankle. An examination of the scar of the
left ankle revealed that it had remained unchanged when it
was compared to previous photographs. It was noted to
have been large and intact with no evidence of ulceration,
inflammation, edema, keloid, adherence, tenderness, or
breakdown. The scar was minimally depressed and there was
minimal underlying tissue loss. The texture was smooth.
The color of the scar varied depending on location from
hypopigmented to hyperpigmented. Range of motion of the
left ankle was full, and it was opined there were
limitations of function noted due to the scar. There was
noted to have been approximately 102 square centimeters of
second-degree scar present, which was sixteen square
inches of second-degree scar. There were no first or
third-degree scar areas noted. The examiner noted that
there was no evidence of first-degree burn scars because
they do not leave scars. A diagnosis of burn-scar second-
degree lateral left ankle, status-post skin grafting was
entered. The examiner further indicated that there was a
total square centimeters of approximately 102 of second-
degree scar area where the skin grating was approximately
sixteen square inches. He related that there was no
evidence of joint involvement which would be unexpected in
a second-degree burn scar. It was further opined that the
veteran's vascular insufficiency was in the larger and
deeper veins, and not the superficial area of the ankle
where there was the healed superficial burn scar.
Increased Evaluation Laws and Regulations
Disability evaluations are determined by the application
of a schedule of ratings which is based on average
impairment of earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. Separate rating codes identify the
various disabilities.
38 C.F.R. Part 4. Where there is a question as to which
of two evaluations shall be applied, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (2002). Any reasonable doubt regarding the degree of
disability is resolved in favor of the veteran. 38 C.F.R.
§ 4.3 (2002).
Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body
with normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to pain supported by
adequate pathology and evidenced by visible behavior of
the claimant undertaking the motion. 38 C.F.R. § 4.40
(2002). The factors of disability affecting joints are
reduction of normal excursion of movements in different
planes, weakened movement, excess fatigability, swelling
and pain on movement. 38 C.F.R. § 4.45 (2002).
The U.S. Court of Appeals for Veterans Claims (Court) has
held that functional loss, supported by adequate pathology
and evidenced by visible behavior of the veteran
undertaking the motion, is recognized as resulting in
disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995);
38 C.F.R. §§ 4.10, 4.40, 4.45.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
concern. Although a rating specialist is directed to
review the recorded history of a disability in order to
make a more accurate evaluation, see 38 C.F.R. § 4.2
(2002), the regulations do not give past medical reports
precedence over current findings. Francisco v. Brown, 7
Vet. App. 55 (1994).
Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes
7800 through 7805. The veteran is entitled to be rated
under the Diagnostic Code which allows the highest
possible evaluation for the clinical findings shown on
objective examination. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
The Board notes that effective August 30, 2002, VA's
Schedule, 38 C.F.R. Part 4, was amended with regard to
rating skin disabilities, to include scars. 67 Fed. Reg.
49590 (2002) (codified at 38 C.F.R. § 4.118). Because the
veteran's claim was filed before the regulatory change
occurred, he is entitled to application of the version
most favorable to him. See Karnas v. Derwinski, 1 Vet.
App. 308 (1991). However, the regulatory provisions
effective August 30, 2002 are not for application prior to
that date. In the March 2000 statement of the case, the
RO considered the pre-August 30, 2002 regulations. As
noted previously in this decision, in a letter to the
veteran, dated October 2, 2002, the Board provided him
with the post-August 30, 2002 regulations. Thus, the
Board finds that it may proceed with a decision on the
merits of the veteran's claim, with consideration of the
original and revised regulations, without prejudice. See
Bernard v Brown, 4 Vet. App. 384 (1993).
The M&RO has assigned the maximum 10 percent evaluation
for the service-connected burn scar of the left ankle
pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 7802
(2002). This is the highest rating available for the
veteran's scar under that code under both the old and new
criteria for 38 C.F.R. § 4.118, as appropriately applied.
Therefore, the Board has therefore considered whether the
veteran is entitled to a higher rating under the criteria
of other related Diagnostic Code sections under both sets
of rating criteria.
The old rating criteria
With respect to scars, prior to August 30, 2002, VA
regulations provided that under 38 C.F.R. § 4.118,
Diagnostic Code 7800 (2002), a 10 percent rating requires
that scars of the head, face and neck be moderately
disfiguring. A 30 percent evaluation requires evidence of
severe scarring, productive of a marked and unsightly
deformity of the eyelids, lips or auricles. In this case,
the veteran's scar is located on his left ankle. Thus, a
compensable rating under the rating criteria for 38 C.F.R.
§ 4.118, Diagnostic Code 7800 prior to August 30, 2002 is
not assignable.
Under 38 C.F.R. § 4.118, Code 7801, a minimum 10 percent
rating is warranted for third degree burn scars where the
area or areas exceed 6 square inches (38.7 centimeters).
Actual third degree residual involvement is required to
this extent. Id., Note (1). In this case, the medical
evidence clearly reflects that the burn scar of the left
ankle was a second degree burn. In this regard, the VA
examiner in April 2002 specifically concluded, after a
through review of the claims file and an examination of
the veteran, that the scar of the left ankle was second-
degree and that there was no evidence of either first or
third-degree scars. Thus, as the medical evidence of
record indicates the veteran's injuries were second degree
burns, not third degree burns, a higher evaluation under
the rating criteria for 38 C.F.R. § 4.118, Diagnostic Code
7801 prior to August 30, 2002 is not for application.
Pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7803 prior
to August 30, 2002, a maximum 10 percent evaluation will
be assigned for scars which are superficially, poorly
nourished with repeated ulceration. Under 38 C.F.R. §
4.118, Diagnostic Code 7804 prior to August 30, 2002, a
maximum 10 percent rating is warranted for superficial
scars that are tender and painful upon objective
demonstration.
As the veteran is in currently in receipt of a 10 percent
evaluation, higher evaluations under the criteria of
38 C.F.R. § 4.118, Diagnostic Codes 7803 and 7804 prior to
August 30, 2002 are not warranted.
Finally, prior to August 30, 2002, other scars are to be
rated according to the limitation of function of the part
affected pursuant to 38 C.F.R. § 4.118, Code 7805. In this
case when examined by VA in April 2002, the veteran's burn
scar of the left ankle was not found not to affect any
surrounding parts, such as his left ankle, and has been
found not to have resulted in any weakness, excess
fatigability, or muscle atrophy. The veteran had full
range of motion of the left ankle. Hence, an evaluation
under 38 C.F.R. § 4.118, Diagnostic Code 7805 prior to
August 30, 2002 is not warranted.
The new rating criteria
Effective August 30, 2002, disfiguring scars of the head,
face, or neck are to be evaluated under 38 C.F.R. § 4.118,
Diagnostic Code 7800. However, as noted previously in
this decision, the veteran's scar is located on his left
ankle. Thus, a compensable rating under the rating
criteria for 38 C.F.R. § 4.118, Diagnostic Code 7800
effective August 30, 2002 is not assignable.
Effective August 30, 2002, 38 C.F.R. § 4.118, Diagnostic
Code 7801, scars, other than head, face, or neck, that are
deep or that cause limited motion provides for a 40
percent evaluation for area or areas exceeding 144 square
inches (929 sq.cm.) A 30 percent evaluation is warranted
where there is evidence of a scar area or areas exceeding
72 square inches (465 sq. cm.). A 20 percent evaluation
requires a scar Area or areas to exceed 12 square inches
(77 sq. cm.). A 10 percent evaluation will be assigned
where there is evidence of a scar area or areas exceeding
6 square inches (39 sq. cm.). Note (1): Scars in widely
separated areas, as on two or more extremities or on
anterior and posterior surfaces of extremities or trunk,
will be separately rated and combined in accordance with §
4.25 of this part. Note (2): A deep scar is one
associated with underlying soft tissue damage. Id.
In this case, as the service-connected burn scar of the
left ankle was found to have been only minimally depressed
and not to have caused any limited motion of the left
ankle when examined by VA in April 2002, a higher
evaluation is not warranted under 38 C.F.R. § 4.118,
Diagnostic Code 7801, effective prior to August 30, 2002.
Effective August 30, 2002, 38 C.F.R. § 4.118, Diagnostic
Code 7803, scars, superficial, unstable will be
assigned a maximum 10 percent evaluation. Note (1): An
unstable scar is one where, for any reason, there is
frequent loss of covering of skin over the scar. Note
(2): A superficial scar is one not associated with
underlying soft tissue damage. Id.
Effective August 30, 2002, 38 C.F.R. § 4.118, Diagnostic
Code 7804, scars, which are superficial and painful on
examination will be assigned a maximum 10 percent
evaluation. Note (1): A superficial scar is one not
associated with underlying soft tissue damage. Note (2):
In this case, a 10-percent evaluation will be assigned for
a scar on the tip of a finger or toe even though
amputation of the part would not warrant a compensable
evaluation. (See § 4.68 of this part on the amputation
rule.) Id.
As the veteran is in receipt of a 10 percent evaluation
for his service-connected burn scar of the left ankle,
higher evaluations under the new criteria of 38 C.F.R.
§ 4.118, Diagnostic Codes 7803 and 7804 are also not
warranted.
Effective August 30, 2002, 38 C.F.R. § 4.118, Diagnostic
Code 7805, other scars are to be rated on the limitation
of function of the affected part. In this case, when
examined by VA in April 2002, the veteran's burn scar of
the left ankle was not found to affect any surrounding
parts, such as his left ankle, and has been found not to
have resulted in any weakness, excess fatigability, or
muscle atrophy. Hence, an evaluation under 38 C.F.R.
§ 4.118, Diagnostic Code 7805 effective August 30, 2002 is
not warranted. See DeLuca, supra. While the April 2002
VA examiner referenced functional impairment, no specific
associated functional impairment has been identified to
date. There is no basis in the record for a higher
rating.
Thus, in light of all the foregoing, and resolving all
doubt in the veteran's favor, the Board finds it
reasonable to conclude that the symptomatology associated
with the veteran's service-connected burn scar of the left
ankle nearly approximates that of a 10 percent rating
under the old criteria of 38 C.F.R. § 4.118, Diagnostic
Codes 7800-7805, as well as the amended criteria of
38 C.F.R. § 4.118, Diagnostic Codes 7800-7805, effective
August 30, 2002. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§
4.7, 4.118, Diagnostic Codes 7800-7805 (effective prior to
August 30, 2002); 4.118, Diagnostic Codes 7800-7805
(effective from August 30, 2002).
Extraschedular Evaluation
The Board has considered whether an extraschedular rating
is warranted for the disability at issue. The evidence of
record does not show that the veteran has required
hospitalization or has required excessive absence from his
employment or other indicia of marked employment
interference caused by the service-connected burn scar of
the left ankle during the aforementioned time period.
Consequently, the Board concludes that the RO's
determination that the evidence does not present such an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards and not referring the claim to the Director of
Compensation and Pension for Extraschedular consideration
is supportable. See 38 C.F.R. § 3.321(b)(1) (2002).
ORDER
A rating in excess of a 10 percent for a burn scar of the
left ankle is denied.
U.R. POWELL
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.